E-Notes - Socio Legal D&G - Unit-2

Chanderprabhu Jain College of Higher Studies
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School of Law
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E-Notes
Class : BBA LL.B/ B.A.LL.B IX Semester
Paper Code : LLB 509
Subject :Socio-Legal Dimensions of Gender
Faculty :Ms. Esha Anand
UNIT- 2
Power and Subordination

Gender issues need to be addressed. These are the issues or problems affecting women
and men that result from society are perceived generalizations and beliefs on
characteristics, capabilities, and behavior of women and men. Often times, these
generalizations and beliefs limit the understanding of what women and men can be and
can do. Gender issues may happen anywhere, such as the organization, workplace,
community, family/household, and other groups wherein people interact.
We are dealing with gender issues when we box in women and men, that is, make
stereotypes on how they should think, feel, and behave; and if we hinder their natural
abilities and true selves. Men and women may each be differently affected by gender
issues, but studies and experience show that it is the women who are in the more
disadvantaged position.
Gender issues are inter-related and integral to one another. There may be times that
gender issues do not directly concern people’s own lives. However, that does not mean
that that these issues are too distant because it must be remembered that people’s lives are
interlinked and intertwined.
People should be able to understand the implications and effects of these issues on
themselves and their groupings, organizations, and households. They should also realize
that they can act on the gender issues and, thereby, become better persons and also
improve family and community relations.
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(RecognizedbyGovt.ofNCTof Delhi,AffiliatedtoGGSIPU,Delhi)
A manifestation of one gender issue may be either the cause or effect of another gender
issue. Thus it is actually difficult to discuss each gender issue separately. But just to have
a name for those gender issues, they can be each defined as marginalization; gender
stereotyping; multiple burden; subordination; and violence:
Marginalization: forces women into the periphery of economic and social life and of the
decision-making process; diminishes value of women’s activities through which they
contribute to the national development process.
Gender stereotyping: attributes a set of favorable or unfavorable characteristics, roles,
and traits to all members of a social group based on sex
Multiple burden: the involvement in the three spheres of work—reproductive, productive,
and community management and governance. A person’s involvement in any of these
spheres, sometimes too much and sometimes unwillingly, lessens her or his time for
herself or himself, and for the things that she or he really wants to do.
Subordination: one sex becoming inferior to the other. Gender subordination is the
institutionalized domination by men of women (or vice versa). Subordination is a power
relationship. Power has four categories: power over, power over, power to, power with,
and power within.
Power over—power based on socially sanctioned threats of violence or intimidation that
invites passive or active resistance and, in order to maintain it, the holder requires
constant vigilance. This type of power is an either/or relationship of domination and
subordination.The type of power that is creative and enables, the essence of individual
empowerment. This power is best described in situations where an individual solves a
problem, understands a situation, or learns a new skill.
Power with—power that involves a sense of the whole being greater than the sum of the
individuals, especially when people felt empowered by engaging in collective efforts like
organizing themselves toward a common purpose.
Power within—refers to the spiritual strength and uniqueness that is within each
individual that makes her/him human. Its basis involves self-acceptance and self-respect
that, in turn, enables an individual to respect and accepts others as equals.
In the so-called hierarchy of subordination, the subordination uses power over someone
or something, which may then lead to abuse, oppression, and, finally, violence.
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In “gender subordination,” one sex is under the submission or the authority of another
sex. In most cases, the women are under the subordination of the men. This situation
often results to women having lesser or no control at all over available economic and
other resources.
Subordination and also violence against women are of equal importance as that of
political, economic, caste and religious subordination. If all forms of subordination are
violations of human rights, then women’s subordination is a violation of human rights.
Violence: any act that instills fear and pain to injure or abuse a person. The two types of
violence are domestic violence and sexual harassment.
Domestic violence—has four types: physical violence, sexual violence, destruction of
properties, and psychological violence. Occurs in forms like spousal abuse, child abuse
(including sexual abuse), elderly abuse, parents abused by children, or violence between
siblings, etc.
Sexual harassment—violence that can occur in the workplace, manifested as verbal,
visual, gestural and physical sexual harassment. It includes sexist remarks, propositions,
coercive pressure for sexual activity, and assault. Physical forms of sexual harassment
include touching, patting, punching, brushing on a woman’s body, and physical and
sexual assaults. Two types of sexual harassment are -- coercive and non-coercive.
Coercive sexual misconduct offers benefit or reward. Non-coercive sexual misconduct
simply annoys or offends a person.
The existence of gender issues in many aspects of people’s lives has various negative
implications. Eliminating or considerably reducing gender issues needs the strongest
commitment of those concerned to be sensitive to differences between and among women
and men. People who work to address gender issues need to further commit themselves to
search for ways and to work for change
Honor killing can be defined as
Honor crimes are acts of violence, usually murder, committed by male family members
against female family members, who are held to have brought dishonor upon the family.
A woman can be targeted by (individuals within) her family for a variety of reasons,
including: refusing to enter into an arranged marriage, being the victim of a sexual
assault, seeking a divorce — even from an abusive husband — or (allegedly) committing
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adultery. The mere perception that a woman has behaved in a way that “dishonors” her
family is sufficient to trigger an attack on her life.’
‘Honor killings are not new to the rural India especially in the regions of Hariyana, Uttar
Pradesh and Rajasthan. But then such cases are not just restricted to the rural areas. They
are also heard of in our capital and in the southern states like Kerela, Tamil Nadu etc. The
AarushiTalwar Case and the killing of Kuldeep and Monica are speculated to be such
killings.
Our country has been very selective about the kind of development she has undergone.
On an international level with the nuclear deal, 8% growth rate and the recognition India
is enjoying to voice its opinion, it seems that ‘India is shining’. But dig deeper into the
dark secrets of this developing nation and we still find rampant killings of young couples
by their own family members to save their honor because of the incest committed by the
couple. Their crime: living in the same village and getting married.
According to the ‘conservative’ khappanchayat, marriage between people of the same
village is considered incest as they are siblings and hence these marriages are not valid.
So the panchayat orders the murder of the couple and hangs their body in the village
crossing as an example to other straying couples.
In India, with its patriarchal society, women are considered as property and the vessel of
family’s honor. And any act which might blot the family’s prestige renders an absolute
right to the male members to murder the girl, undo her wrongs and win back the honor.
Such crimes as well as such criminals have been breeding under the political blessings of
the political parties mainly interested in the vote banks of these villages.
Bone Of Contention
In this regard, the very basic difference between Gotras and Sapindas need to be
reviewed for the main crux of the discussion lies in the difference between these
concepts.
Sapindas means
‘With reference to any person, it extends as far as the third generation (inclusive) in the
line of ascent through the mother, and the fifth (inclusive) in the line of ascent through
the father, the line being traced upwards in each case from the person concerned, who is
to be counted as the first generation On the other hand Gotra means: A Gotra is the
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lineage or clan assigned to a hindu at birth. Gotra is the Sanskrit term for a much older
system of tribal clans. The Sanskrit term "Gotra" was initially used by the Vedic people
for the identification of the lineages. Generally, these lineages mean patrilineal descent
from the sages or rishis in Brahmins, warriors and administrators in Kshatriyas and
ancestral tradesmen in Vaishyas.
It can be seen that marriage of a person who is the sapinda of the other is considered
invalid because marriage between such close relatives is unacceptable in the society and
comes within the purview of prohibited relationships. Also marriage between closely
related persons is not advisable as it leads to inbreeding depression.
But in the case of the gotras, the lineage of a person is traced back to a single rishi and
hence another person belonging to the same gotra is considered a sibling. From a
scientific point of view this doesn’t seem to make sense as it is virtually impossible in
today’s age to confirm that we have an unbroken ancestral lineage to one of the eight
rishis.
Psychology:
In order to find a solution for such killings, it is necessary to analyze it from the very
core. The very root of such an attitude towards marriage in the same ‘gotra’ lies in the
fact that incest is considered as a taboo in our culture. The Hindu Marriage Act of 1954
bars marriage between sapindas-people within the third generation in the line of ascent
through mother, and fifth generation in the line of ascent through father. In addition to
this it also bars marriage between certain ‘degrees of prohibited relationships’, including
those between sisters and brothers. Thus, the law lays down the ingredients for a valid
marriage and excludes marriage between close relatives.
It can thus be seen that in our culture people are made conscious of their relations with
the siblings from the very beginning. Even a mere thought of a matrimonial relation with
a close relative is an impure thought, so vile that it’s an unforgivable offence. And this
feeling is buried deep within the mind. Hence it is this high level of consciousness that
when marriage between people belonging to the same gotra is heard of, it creates
indignation and anger in the minds of the family members as well as the society. The
society goes further and boycotts the family which aggravates the situation to such an
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extent that the males in the family don’t seem to mind killing the couple in order to
restore their prestige in the society.
Provisions in the Indian Law
The Indian legislation seems to have finally awoken to this problem after it has come into
the limelight and people are speaking up against such cruelty. Finally, after the killings,
according to the home minister P Chidambaram, the UPA led central government
proposed to amend the Indian Penal Code and make Honor Killing a ‘distinct offence’;
although how that will make any difference to the present condition still needs to be
scrutinized as honor killing amounts to murder which is punishable under law.
In addition to this, the nature of the crime makes it virtually impossible to track the
victim. This is because, usually a huge mob is sent after the couple to be pelted by stones
and to be killed. Hence no definite accused can be found. The dominance enjoyed by the
khappanchayat in the village and its pressure on the police unables them to function
properly and carry on the investigation. Most of the cases are not even filed with the
police and are hushed up by the family and the panchayat. The government has also made
proposals to revoke the 30 days notice period presently required under the Special
Marriage Act for inter-community marriages,because that time is misused by the
families.
Judgments regarding the issue
The discussion on the issue of same gotra marriages was laid to rest sixty five years ago
with the landmark judgment by the Bombay High Court where it declared that same gotra
marriages were legal. The case of ‘Madhavrao v. Raghavendrarao’it was held that the
marriage in question between a husband and wife belonging to the same gotra was valid.
The court also referred to the eminent author PV Kane, author of ‘The History of
Dharmashatra’ who had said: “The mass of material on 'gotra' and 'pravara' in the sutras,
the puranas and digests is so vast and full of contradictions that it is almost an impossible
task to reduce it to order and coherence." In addition to this the court also consulted the
text of Manu and Yajnavalkya and observed that the requirements on gotra were
recommendatory not mandatory. On the following grounds the court held that:‘it was
impossible to accept the suggestion that in reference to the Brahmin families of today,
their gotras and pravaras represent anything like an unbroken line of descent from the
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common ancestors indicated by the names of their respective gotras and pravaras.’ The
most recent case that can be considered with respect to the issue of honor killing can be
the Kaithal Murder Case of Manoj and Babli the decision of which was declared on
March 29th 2010. The landmark verdict was given by the Additional district and sessions
judge VaniGopal Sharma. Five of Babli's family members -- her brother Suresh, uncles
Rajender and Baru Ram and cousins Satish and Gurdev -- were ordered to hang until
death for killing the couple on June 15, 2007. The judge sentenced the seventh accused,
Mandeep Singh, driver of the Scorpio used in the crime, to seven years' jail for
kidnapping and conspiracy. In addition, the leader of Banawalakhap, Ganga Raj, was
awarded life sentence for hatching a conspiracy to kill a couple just because they had
married against the wishes of elders who had termed them "brother and sister."
Meaning of Witchcraft and Witch hunting
The word ‘witchcraft’ is made up of two words ‘wicce’ and ‘craft’. ‘Wicce’ has
originated from ‘wicca’ which means ‘witch’ and ‘craeft’ refers to ‘skill or ability’.
Witchcraft is the practice and belief in magical abilities and the one who professes
witchcraft is called a witch or wizard. In the past, midwives were accused of witchcraft
and were made to admit it by subjecting them to torture. As the word is used in a negative
sense, the people associated with witchcraft are looked at with suspicion and are socially
less acceptable. On the other hand, wich hunting is the wicked practice where the women
alleged of causing detrimental influences are branded as witches by Ojhas (witch
doctors/tantriks) or community people and are thereafter hounded, banished, flogged,
raped, paraded naked through the village, forced to eat human excreta, balded, thrashed
etc. The women accused of being witches are called by various names like dayan, tonahi,
beta khauki (son eater), adamkhauki (man eater), bhaikhauki (brothereater), maradmuhi,
kheldi (characterless), bisahin (poisonous woman), bhootni, Dakan etc. Thus, witch
hunting involves both physical and verbal abuse.
History of Witch Hunting
The atrocious witch hunting attacks were common in Europe in the 13th century,
Germany in 1587 and in America in the early modern period from 1450 to 1750.
England: In England, under the reign of Queen Elizabeth, three major acts were enacted
to punish witches. A woman named Agnes Waterhouse was the first person to be
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executed in England for witchcraft in the famous trial of ‘The Chelmsford Witches’. King
James I of England supported witch hunts which led to the trial of ‘The Pendle Witches’
in early 1600s.
Europe: ‘Trier Witch Trials’ was the largest witch trials in European history. Over 368
people were executed between 1581 and 1593 which included respected citizens,
professors, judges etc.
America: ‘The Salem Witch Trials’ that took place in the Salem village of Massachusetts
in 1690 marked the beginning of this practice in America. Many executions took place
during this trial.
Origin of Witch Hunting in India
The exact date of origin of witch hunting in India is not known. The practice is said to
have emanated hundreds of years ago in the Morigaon district of Assam which is
famously called ‘The Indian capital of black magic’ and is the abode of people who want
to learn witchcraft. The practice is a customary one in India and is prevalent in rural
isolated areas especially among the tribal population. The incidents of witch hunting are
prominent in Assam, Bihar, Chhattisgarh, Gujarat, Haryana, Jharkhand, Madhya Pradesh,
Maharashtra, Orissa, Rajasthan, Uttar Pradesh and West Bengal.
Who are the victims?
The victims of the witch hunting are in most cases elderly women, widows who are
branded as witches because of their physical features-hunchback, weird hair or skin
colour. In a few cases even men have been accused of having supernatural powers and
are made to suffer the consequences. The family and children of the woman who is
branded as witch also suffer as they are usually socially outcasted and are forced to leave
the village or in worse cases killed.
Types of witch hunting attacks

Calculated Attacks: These are the planned attacks designed to fulfil some particular
object including unlawfully grabbing property, sexual harassment and for taking revenge.
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Surprise Attacks: These attacks happen without any prior conflict and the victim has no
knowledge of the accusation prior to these attacks. Surprise attacks are more violent than
the calculated ones.
Countries where witch hunting is still prevalent
The countries where this practice is still prevalent involve Saudi Arabia, Tanzania,
Gambia, Nepal, India, Papua New Guinea, Uganda, Mexico, South Africa, Chile, West
Indies.
Cases of Witch hunting
In Tanzania, 400 people were killed in witch hunts in 2016.
In India, 2097 murders were committed with the motive of witch hunting between 2000-
2012.
In Jharkhand, the anti-witch hunting law was passed in 2001. But in 2015, 5 women were
brutally murdered after being attacked by a mob on accusation of witchcraft.
In Orissa, 99 cases of witch hunting were reported in 2017, 83 in 2016 and 58 in 2015.
In Assam, 114 women and 79 men were branded as witches and thereafter killed and 202
such cases have been registered between 2001-2017.
Judicial Pronouncements
Tula Devi and others v. State of Jharkhand
In this case, about 10 people armed with sticks entered the house of the complainant and
abused and assaulted her. They used to call her and address her as Dayan for the last 2
years and threatened her to leave the place. Her husband tried to rescue her but he was
also assaulted. This caused the women mental agony. Some partition suit was also going
on and the woman was accused of being a witch to put pressure on them. However, the
case was dismissed on the ground of lack of eye witness.
MadhuMunda v. State of Bihar
In this case, a mother was dragged out of the house by some people. She was reported to
be missing. FIR was filed. 8 days later mother was found and said that those people threw
her in a ditch where she fell unconscious. On regaining consciousness she went to her
brother’s house. In this case also the accused was not convicted due to the unreliable
testimony of the witness.
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State of West Bengal v. Kali Singh and others

In this case, the Calcutta High Court observed that judicial execution in the cases of witch
hunting does not help in eradicating this evil because it has its root in the psyche of men.
The Court while commuting to life the death sentence of 7 men guilty of killing 3 women
believing them to be witches held the state irresponsible in discharging its duty of
providing education in every nook and corner of the country.
Role of NGOs and social activists
Perhaps the most famous person to have raised his voice against superstition is
NarendraDabholkar, an Indian medical doctor, social activist, rationalist who was the
Founder and President of Maharashtra AndhashraddhaNirmoolanSamiti(MANS) in 1989.
He was committed to eradicate superstition in Maharashtra and under his supervision the
MANS framed the Anti-JaduTona Bill but it was opposed by some political parties and
he was murdered on 20 August, 2013. After his death the bill was considered again and
was passed in December, 2013.
‘Centre for Social Justice’ is an organization fighting for women’s rights and the rights of
marginalised people such as Adivasi women who are attacked in witch hunts in Gujarat.
BirubalaRabha is another social activist credited for putting pressure on the Assam
government to enact one of the countries strictest anti-witch hunting laws.
Edamaruku’s organization, the Indian Rationalist Association tries to eradicate this
practice by scientific means.
Partners for Law in Development (1998) is another organisation working for women’s
rights.
The orgnisation ‘Anandi’ works for the rehabilitation of survivors of witch hunting.
Sd/-
Ms. Esha Anand

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Chanderprabhu Jain College of Higher Studies

Class : BBA LL.B/ B.A.LL.B IX Semester

Paper Code : LLB 509

Subject :Socio-Legal Dimensions of Gender

Faculty :Ms. Esha Anand

Power and Subordination

Types of witch hunting attacks

State of West Bengal v. Kali Singh and others

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